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Pakistan: Women's Commission Recommends Qisas Law Be Amended

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South Asia Citizen's Wire

The National Commission on the Status of Women (NCSW), after reviewing the Qisas and Diyat Ordinance (Act II of 1997) and the concept of justice in Islam, declared that honour killings and all other sorts of victimisation of women have no link with Islam.

A consultative workshop, concluded a day ago, also stressed the need to change the Islamic definition of a 'wali' and asked the government to properly compensate women victims of domestic violence, who were not being treated well by the government.

The workshop suggested the government try the accused for violence against women under the Islamic term 'Tazeer'.

According to NCSW officials, the workshop participants urged the government to take strict measures to end violence against women. They also suggested the government stop the application and misuse of the Qisas and Diyat laws and declare the offence "non-compoundable". "In such cases the offenders must be given exemplary punishments," the participants said.

It was noted that "there is no provision in the Quran and Sunnah that a killer of his wife be exempted from Qisas in cases where minor children are left behind as legal heirs. As such the prevalent law must be amended accordingly," the workshop recommended.

The participants said that 'vani/swara' and 'watta satta' (exchange marriages) are pre-Islamic traditions and have no scope in Islam. "They must be condemned and strict punishment must be awarded to the accused," they said. They also said the term 'not valid' in the proviso to Section 310 of the Pakistan Penal Code (PPC) - giving of women in marriage shall not be a valid badl-e-sulh (a compounding agreement) - is not enough and that the term 'void ab initio' or 'illegal' should be used instead. They recommended a punitive clause be provided in this respect.

The participants also agreed that offences under the Qisas and Diyat laws were directed against the legal order of the state, because the state is responsible for the lives and property of its people. "However, the legal heirs of a victim are vested with the right to demand Qisas or compound the offence by accepting Diyat. But this does not stop the state from trying the offence and punishing the offender," they said.

They suggested that no offence under Qisas and Diyat be compounded until and unless the trial is completed, after which the legal heirs of the victim might demand Qisas or compound the offence. "However, the state retains its right to punish the offender even if the offence is compounded," they said.

The participants argued that circumstantial evidence must not be rejected even if the witnesses turns hostile. "The Qanoon-e-Shahadat Ordinance 1984 (Law of Evidence) provides clear provisions to this effect, but unfortunately the law has not been enforced in its true spirit," said former chief justice Abdul Karim Kundi.

Others said that provision 313 of the PPC was "discriminatory" and required amendment. Dr Farooq Khan and Dr Aslam Khaki said this provision has "no justification" in Islam.

The participants also recommended Section 304 of the PPC be amended. The participants stressed that the Diyat amount should be treated as "compensation and not inheritance". Mr Khaki and SA Rehman quoted Verse 92 of Surah Nisa in which the word 'Ahl' is used for the right to Diyat. According to them, 'Ahl' means dependant and not necessarily the legal heirs.

They said that the definition of 'wali', as given in the prevalent law, should be re-defined in the true spirit of Islamic injunctions. The majority were of the view that the parameters should be prescribed in Section 338 of the PPC and that the judiciary must be trained in Sharia law.

NCSW Chairperson former justice Majida Rizvi, who chaired all the sessions, gave a detailed briefing of the objectives, functions and activities of the commission. She also highlighted an extensive review of the Hudood Ordinance of 1979.
Syeda Viquarun Nisa Hashmi, a research associate of the NCSW, gave a presentation of her research on the topic.
Ms Hashmi, highlighting salient features of her research, spoke about the impact of loopholes in the Qisas and Diyat Ordinance (Act II of 1997) and leniency of the judiciary in dealing with such social evils, citing provisions of the prevalent laws in the light of the Quran and Sunnah. She explained the gravity of crimes being committed for honour, substantiating her contention by presenting statistics of honour killings in Pakistan from 1997 to May 30 2003.

The acquittal ratio for people accused in honour killing cases, according to Ms Hashmi, is 43.13 percent in Balochistan, 71.97 percent in Punjab, 91.4 percent in Sindh and 92.9 percent in the North West Frontier Province. She also presented a detailed analysis of the judgments on the subject from 1977 to date.

The meeting was held from March 25 to 27 at Islamabad. The participants were religious scholars, political leaders, former judges, prominent lawyers and the heads of religious institutions. They included Professor Dr Khaled Masud, Dr Murtuza from the Council of Islamic Ideology, Safwanullah, Member of the National Assembly MP Bhandara, MNA Dr Farid Ahmed Piracha, MNA Yaqoot Jamilur Rehman, Shehla Zia, Professor Dr Iftikhar N Hassan, Farzana Bari, Muhammad Bilal, Sardar Muhammad Ghazi and others.

Similar consultation meetings have already been conducted in the Punjab, Sindh, Balochistan and the NWFP. The NCSW will formulate its report and recommendations after the completion of the consultative process.

By Waqar Gillani
Published in the 1 April 2004 edition of The Daily Times [Pakistan]